Unions Protect Employees And Offensive Employee Conduct, And That's How Unions Work
Unions are only as good as the people who comprise them.
Unions may be poised to make a comeback (teachers’ unions aside). They are popular with millennials. Even, evidently, conservative millennials. The issue is, millennials aren’t in a position to take a lot of union-possible jobs yet. They are still working at coffee shops and finding their way. But time will change that. Maybe the fact that millennials are struggling more than any other generation has something to do with this. And the ridiculous cost of education. They want something to level the playing field. I support unions, for the most part. But with a caveat. I don’t think people truly understand how unions work. Or the power of the Collective Bargaining Agreement (“CBA”) and protections during concerted activities. I think unions are very necessary and needed in today’s labor landscape. And I think they may make a comeback, but in unexpected ways.
When I began my career, I did labor work (on the side of management). Labor work is fascinating, and for the most part it was very good stuff. But when it wasn’t, it truly wasn’t. One example: a terminated employee filed a grievance proceeding after he was terminated for calling his co-worker a stupid “n-word” after the co-worker made a mistake. Of course, as we investigated, it turned out he had a history of racially-motivated animus towards African-American co-workers. Furthermore, the slur-using employee shared his opinion of his co-worker over a shared radio frequency with every other employee who was present at the time.
This employee couldn’t have denied that he said the n-word if he wanted. But he didn’t deny it. Instead of realizing that this was not a good thing to say to someone at work, the guy was rather indignant about it. Threats of violence were made because, candidly, using a racial slur and being indignant about it is a fight-warranting offense. And where this employee worked, there were many employees of color, and many of them were larger than the slur-loving guy.
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Understandably, he was fired. Quickly. Because, in addition to the fact that the company didn’t want to be known as a racist place and get lots of hostile workplace lawsuits, the company didn’t want this slur-loving employee to get seriously hurt given his attitude and his co-workers. His injury would have been on their dime. Both hostile environment suits and workers comp administrative proceedings for avoidable injuries are expensive situations for a company. Makes sense, right?
Except, because of the magic of unions, the slur-loving employee got his job back. For non-union shops, using the n-word and being indignant about it (with a history of racial animus to boot!) should be and is grounds for immediate termination. And if not, there are sure to be EEOC investigations following.
If unions play their cards right, they should be making a resurgence. I think that in a few years, they will have made a much larger comeback, and millennials will be pushing for them in the workplace. They have many upsides and are appropriate for professional environments, and any environment really where there is a power imbalance. I can’t think of a bigger one than in the workplace.
But my early experiences in their sexism and racism do give me concern. If my co-worker calls me a racial slur, I don’t think I would punch them, but I’m honestly not sure. But I would want them fired immediately. I’m not sure a union worker would lose her job, which would be a huge problem for me. I would think that such an employee would be the definition of a hostile work environment.
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And if you think that these “kinks” of the labor process have been worked out, a recent Second Circuit ruling makes me quite sure the slur-loving union employee from my past is still employed (his union still exists). In NLRB v. Pier Sixty, LLC, the NLRB ordered an employer to reinstate the employment of an employee who called his supervisor a “nasty mother—-” and used curse words about the man’s mother and his entire family, on, of course, Facebook. In a public post. Even if it had not been public, the guy was friends with many of his co-workers. One of his co-workers shared the posting with management at the company. An investigation was held. The employee was terminated.
This Facebook activity, however, was around the time of a union campaign. A union campaign is when a union is working to unionize a shop. The NLRB lumped the campaign activities in with the Facebook activity, and the employee’s “speech” was considered protected by the NLRA (National Labor Relations Act).
Now don’t get me wrong: I support unions. I understand they are why we all enjoy greater benefits and workplace protections. But unions are only as good as the people who comprise them. People act like millennials are the generation that will save the world, but they are sexist and racist, like those before them. Unions will continue to have the same issues they have had throughout time. If you are a company facing union activities, be sure your CBA protects your female workers and workers of color. Because in certain union environments, they will need it.
Earlier: Farewell Unions — It’s Been Real!
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Beth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at [email protected] and follow her on Twitter at @HLSinDenver.
